Endoket Ondan Lotelewa v Republic [2021] KEHC 6285 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL APPEAL NO 350 OF 1998

ENDOKET ONDAN LOTELEWA.................APPELLANT

VERSUS

REPUBLIC................................................RESPONDENT

APPLICATION FOR RE-SENTENCING

HEARD AT THE HIGH COURT, NANYUKI

RULING AND RE-SENTENCING

1. The Appellant herein, ENDOKET ONDAN LOTELEWA, was convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death vide Nanyuki SRM Criminal Case No 1323 of 1997.  He appealed vide the present appeal against both conviction and sentence.  His appeal was dismissed in a judgment delivered on 19/10/1999 (Juma & Mulwa, JJ).

2. The Appellant’s second appeal to the Court of Appeal at Nyeri (Criminal Appeal No 7 of 2000) was also dismissed.   His death sentence had in the meantime been commuted to life imprisonment by executive clemency.

3. Following the declaration by the Supreme Court of Kenya in the now notorious case of Muruatetu that the mandatory nature of the death sentence under section 204 of the Penal Code for the offence of murder contrary to section 203 of the Penal Code was unconstitutional, the Appellant applied to this court to review his sentence as meted out to him by the trial court.

4. By parity of reasoning, the aforesaid declaration by the apex court must apply in equal measure to the mandatory nature of the death sentence under section 296(2) of the Penal Code for the offence of robbery with violence.  This court therefore has jurisdiction to review the Appellant’s sentence.  Learned counsel for the Respondent has conceded this issue of jurisdiction.

5. I have taken into account the circumstances in which the offence was committed, including the fact that the Appellant and the other robbers were armed with a firearms.  I note that the firearms were fired into the air and nobody was seriously injured in the course of the robbery.  But the psychological effect of the terror accompanying the robbery upon the victims cannot be understated.  I am persuaded that the sentence of death imposed was not appropriate in the circumstances of this case.  A fairly long term of imprisonment would have served the ends of justice.

6. The Appellant has been serving sentence since 18/08/1998, a period now of nearly twenty-one (21) years.  That is a long time.  He has now paid his debt to society.  He should have another chance at life outside prison walls.

7. In the circumstances, I will set aside the sentence of death imposed upon the Appellant and substitute therefor the time already served.  The Appellant shall therefore be set at liberty forthwith unless otherwise lawfully held.   It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 9TH DAY OF JUNE 2021

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2021